The Understanding of “Neither slavery nor involuntary servitude shall exist” Before the Thirteenth Amendment

By providing that "[n]either slavery nor involuntary servitude shall exist," the authors of the Thirteenth Amendment adopted a prohibitory formula, originating in the Northwest Ordinance of 1787 that was subsequently incorporated into the organic laws of many territories and states, and by 1865, had been for decades subject to extensive interpretation and commentary. To assess the original understanding of the Thirteenth Amendment, then, it is necessary to examine the pre-Amendment understanding of this prohibitory language. In this article, I review this evidence and draw the following conclusions: (1) the prohibition was deemed derivative of the natural-rights principles of the Declaration of Independence; (2) the prohibited slavery and involuntary servitude represented two distinct, yet partially-overlapping, concepts; (3) the prohibited slavery and involuntary servitude did not encompass traditional servitudes like those between parent and child; (4) the stipulated non-existence of slavery and involuntary servitude concerned chiefly their legal existence and perhaps also their actual existence; and (5) this stipulated non-existence did not, ipso facto, prohibit racial discrimination or any other "badges" of servitude.